presumably because of what others had told them. Other witnesses indicated they saw a given occupant only once or twice. Details as to when and where specific Navajos lived in a stated area are sometimes contradicting. The most specific testimony establishes that the occupancy of any given definite area was transitory. Much of the testimony is simply cumulative and general to the effect that Navajos lived north of the San Juan River between the Montezuma and McElmo Creeks and that other people did not live there. However, some of the specific testimony did indicate the presence of non-Navajos. See, e.g., that of Ben Whitehorse which showed in 1920's that a white man in the area grazed his herds upon the Montezuma Creek section as well as the Indians (Tr. 375-78), and see e.g., that of other witnesses that Utes came through the area (Tr. 400-01, 405, 548, 583, 733, 772).

Among the elderly non-Indian residents of the area who testified, there were some conflicts as to the extent and exclusiveness of the Navajo occupancy in the area. Ira Hatch, a trader with the Navajos, testified for the Tribe that the Navajos were the only Tribe occupying the area between the Montezuma and McElmo Creeks north of the San Juan River and south of Hatch Trading Post (Tr. 1034). This is denied by the State's witnesses generally. Hatch estimated. the total group farms at Montezuma Creek in 1912 or later to be no more than 50 to 100 acres (Tr. 1043).

That some of the area was used by non-Indian stockmen from Utah and from Colorado was indicated by Charles Redd (Tr. 2006-23). Other witnesses for the State indicated there were only a few Navajos in the area, mostly along the San Juan River, but they believed the Navajos probably did not occupy the disputed sections in 1900 or for some time thereafter, e.g., Albert R. Lyman (Tr. 1805); Eleanor Ismay (Tr. 1826-30); John Ray Hunt, Jr. (Tr. 1861); J. Monroe Redd, Jr. (Tr. 1942-43, 1957). The Tribe discounts the testimony of these and other witnesses for the State contending they had insufficient opportunity to observe the Navajos in the area.

As with the Navajo witnesses, it is apparent that some of the testimony and opinions of these witnesses to the effect that the Navajos were not the significant group in the area at the turn of the century was based upon their own family and cultural group tradition, history, and stories pertaining to the area, as well as their own observations personally. Some, such as Mrs. Ismay, of the Ismay Trading Post who was raised near the McElmo section as a child and has lived nearby all her life, since the 1920's trading primarily with Utes until more recently with the Navajos, had good opportunities to observe the area, especially the McElmo area. Her comments to the effect that

Utes were a more predominant presence in that area than the Navajos in her childhood are per

other side, and the Navajo would move her sheep back across the river (Dep. 14). It is evident that the non-Indians living in the area considered the area north of the San Juan River as public land which they were entitled to graze, while at that time they believed the Navajos were entitled to use only their own lands in the reservation south of the river for grazing, which the nonIndians could not use.

As to post-1900 events there is an indication that one non-Indian, a Jack Majors, in the 1920's or 1930's may have threatened the Navajos and they were fearful of him, although nothing supports some of the Navajos' exaggerated statements concerning him (e.g., Tr. 604). By the 1920's as has been indicated, the pressures for use of the federal range had increased by an influx of settlers in the area to the north, expansion of existing cattle operations by non-Indians, and the increase of the Navajos and their flocks of sheep in the area. These pressures led to the expansion of the reservation in 1933 and may have been the focus. of some troubles among the conflicting land users. There is some indication that in 1931 or 1932, four Navajo hogans may have been destroyed and poles used by homesteaders north of the area, and some Indian horses killed (Nav. Ex. 616), which had caused bitter feelings between the Indians and nonIndians, but nothing to show any improvements on the disputed sections were destroyed. Other indications by Navajo witnesses of threats

of violence appear to be exaggerated and to stem from the incidents resulting in the Supreme Court decision in Hatahley v. United States, supra (note 7), which occurred well after the passage of the Taylor Grazing Act in 1934, on lands outside the 1933 extension. The actions. in killing Navajo horses for trespassing were taken by employees of the United States Grazing Office (now Bureau of Land Management), in enforcing that Act.

As to tribal abandonment of an area so that grants to third parties take effect without any encumbrance of Indian occupancy, see Gonzales v. French, 164 U.S. 338 (1896); Williams v. Chicago, 242 U.S. 434 (1917); Shore v. Shell Petroleum Corp., 60 F.2d 1 (10th Cir. 1932), cert. den., 287 U.S. 656.

Standing of Navajo Tribe to Contest or Protest Issuance of Patent to the State

With this factual background. we come to a resolution of the legal issues raised in this case. First, we consider the Director's holding that the Tribe is not the proper party in interest to protest the State's application for the confirmatory patent, and that the Tribe lacks standing because the same occupancy rights in individual Indians which would be sufficient to preclude the vesting of the State's title would, in effect, bar the land from operation of the Act of March 1, 1933, adding "vacant, unreserved, and undisposed of public lands" to the reservation, and section 1(d) of the Act of Septem

It is unnecessary to discuss the contentions of the Tribe and the State on this question to any extent. We have previously indicated that in this appeal the Tribe has taken an additional position that there were tribal rights created by the Utah Enabling Act and tribal occupancy which precluded the grant to the State. This position eliminates its complete reliance on any rights of individual Indians via the doctrine of Cramer v. United States, supra.

In any event, if the Director meant the lack of standing in the Tribe to be a jurisdictional defect by which this Department could not entertain its protest, his decision is

in error to that extent. We distinguish between the right of the Tribe to have its protest heard and fully considered in this Department and any ruling on the merits of its protest insofar as it asserts title never passed to the State. As we have indicated, by the Act of June 21, 1934, 43 U.S.C. § 871a (1970), the Secretary of the Interior has a duty to ascertain when title to the numbered school sections vested in the State and any prior conditions, limitations, easements, or rights, if any. In 1965 when the Solicitor ordered

rules of practice of this Department provided for private contest proceedings where "any person claimed title to or an interest in land adverse to any other person claiming title to or an interest in such land," or if the elements of a contest were not present, any objection raised to proposed action by the Bureau of Land Management would be deemed a protest and such action would be taken as deemed appropriate in the circumstances, 43 CFR 1852.1-1 and 1-2 (1965). The same rules, renumbered, prevail today, 43 CFR 4.450–

1 and 2. The Tribe and the State are

considered "persons" within the meaning of these rules. Cf. 43 CFR 1.3 & 2; Sims v. United States, 359 U.S. 108, 112 (1959).

In remanding this case for a hearing, the Solicitor deemed a full hearing on the facts to be appropriate. Full consideration of the appeal from the Director's decision is also appropriate. It is a fact that the disputed sections are now within the exterior boundaries of the Tribe's reservation. It is also a fact that sub

stantial mineral values in the disputed sections are involved, as well as any other incidental values for the land, which the Tribe has a claim to if the State's claim of title is not sustained.28

Therefore, despite any assertions that the Tribe may not have the

28 By the Act of November 20, 1963, 77 Stat. 337. Congress approved a compromise and settlement agreement pertaining to the oil and gas rights in these two sections pending a determination of the disputed title claims between the Tribe and the State, which the Act otherwise did not purport to affect.

best claim to the land because of possible superior claims by individual Indians, it has a substantial interest in asserting in its own right or in behalf of its members (but cf. Sioux Tribe of Indians v. United States, 89 Ct. Cl. 31 (1939)) a claim to the land and a challenge to the State's right to the confirmatory patent. This is not comparable to cases involving standing in court proceedings where actual injury to an organization or other legal entity cannot be shown. Cf. Sierra Club v. Morton, 405 U.S. 727 (1972).

Furthermore, it has long been recognized that whether or not in a particular case the United States has the technical status of a guardian or a fiduciary toward an Indian tribe, it does have a special relationship toward such tribe greater than that of a nonparticipating bystander, a sovereign toward its ordinary citizens, or a landowner toward his tenant. Oneida Tribe v. United States, 165 Ct. Cl. 487 (1964), cert. den. 379 U.S. 946, cited in Navajo Tribe of Indians v. United States, 176 Ct. Cl. 502, 364 F.2d 320, 322 (1966). As this proceeding raises the issue of title to lands within the exterior boundaries of the Navajo reservation, in addition to the duty required under the Act of June 21, 1934, regarding the State's confirmatory patent, this Department has a further duty in view of its special relationship to Indians to assure that the Tribe's claim is fully heard and considered. Therefore, whether this proceeding is deemed a private contest or a pro

test within the rules of practice of this Department, the Navajo Tribe has been given standing within the Department to challenge the issuance of the confirmatory patent to the State for school sections within the exterior boundaries of the reservation in its own right and for its members regardless of any possible conflicting claims by its members or others.29

Because no claims were asserted by any individual Indians in their own behalf as superior to the State and the Tribe following publication of the State's application for patent, it would appear there are no such claimants now entitled to challenge issuance of the patent to the State nor does the evidence reveal any. We, therefore, raise only a quaere as to whether the dictum in the Director's decision was correct in concluding that individual Navajo Indians might have standing to protest the State's application based upon their own occupancy claims, but it is premature to decide this theoretical issue.30

20 But compare the Act of March 2, 1901, 43 U.S.C. § 868 (1970).

30 We note that support for the position that individual Navajos who were not descendants of Navajos bound by the 1868 Treaty and who may have occupied that area may still have aboriginal occupancy rights, as suggested in United States V. Hosteen Tse-Kesi, supra, note 7, is now questionable in view of the subsequent decisions in Healing v. Jones, supra, and United States v. Kabinto, supra. Any rights of individual Indians in the area as superior to the Tribe, aside from allotted lands, is also questionable in view of the recent per curiam order of the Supreme Court in United States v. Jim, Utah v. Jim, 409 U.S. SO (1972), by which the Court rules that the 1933 Aneth extension Act did not create constitutionally protected property rights in the individual Indians, but gave rights to the Tribe, and that a subsequent